LA Times op-ed: Maybe this Mohammed movie isn’t free speech after all

posted at 7:21 pm on September 18, 2012 by Allahpundit

On a day when Egypt is appeasing its mob by issuing arrest warrants for the people responsible for the film (a capital offense there, do note), this is what’s running in the biggest paper in Los Angeles. Turns out the author, Sarah Chayes, is a former assistant to the chairman of the Joint Chiefs of Staff, which is no surprise. As Matt Welch notes, lately the strongest pressure on private citizens to limit their criticism of Islam has come from the top of the Pentagon. Bob Gates called Terry Jones when he first threatened to burn a Koran to ask him to stand down, then Martin Dempsey called him again a few days ago when the Mohammed movie broke big. Not content with asking citizens not to make Islamists mad, Chayes wants to blow a hole through the First Amendment using Supreme Court precedent so that they can be compelled to shut up. This is all being done with a noble goal in mind, i.e. protecting U.S. troops in the field, but I’ve got to say: If the choice is between carving off pieces of free speech to sustain an already crumbling mission in Afghanistan and bringing American troops home so that they’re out of harm’s way while keeping free speech intact, I’m all for taking a close look at the latter.

The current standard for restricting speech — or punishing it after it has in fact caused violence — was laid out in the 1969 case Brandenburg vs. Ohio. Under the narrower guidelines, only speech that has the intent and the likelihood of inciting imminent violence or lawbreaking can be limited…

As for imminence, the timeline of similar events after recent burnings of religious materials indicates that reactions typically come within two weeks. Nakoula’s video was deliberately publicized just before the sensitive date of Sept. 11, and could be expected to spark violence on that anniversary.

While many 1st Amendment scholars defend the right of the filmmakers to produce this film, arguing that the ensuing violence was not sufficiently imminent, I spoke to several experts who said the trailer may well fall outside constitutional guarantees of free speech. “Based on my understanding of the events,” 1st Amendment authority Anthony Lewis said in an interview Thursday, “I think this meets the imminence standard.”

The Brandenburg case had to do with a Klan leader who was trying to rile up a mob of Klansmen. It’s been used ever since as a constitutional guideline on when government can criminalize speech that incites an audience to riot. The speaker has to intend for the audience to behave violently, it has to be likely that the audience will behave violently, and the possibility of them behaving violently has to be imminent. Essentially, in very narrow circumstances, Brandenburg says it’s okay to silence a speaker if he’s colluding with a violent mob by encouraging it. There are all sorts of problems with applying that ruling to the Mohammed case — who’s the “audience”? did the movie encourage “imminent” violence (or any violence at all) or did the 9/11-related publicity do so? do we really want to assume, as a matter of law, that criticism of Islam is always “likely” to result in violence? — but never mind that. Chayes’s trick is to try to extend Brandenburg’s logic to circumstances where the speaker and his audience are enemies. There’s no actual collusion in the case of the filmmaker and Islamists, but there’s kinda sorta de facto collusion in that an insane Islamist violent reaction bolsters the filmmaker’s criticism of the faith and therefore, per Chayes, we should infer that he “intended” it. Even though, as I write this, he’s in hiding in fear for his and his family’s lives.

What she’s really making here isn’t an argument under Brandenburg but an argument under the “fighting words” exception to the First Amendment, one of the most pernicious doctrines in Supreme Court jurisprudence. It’s been around since 1942, when someone in New Hampshire was prosecuted successfully for calling a cop a “goddamned racketeer” and a “damned fascist.” The Court upheld his arrest (unanimously!) on grounds that it’s perfectly fine to criminalize words which “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” In other words, if you say something to someone that’s so outrageously insulting that they’re apt to come after you physically, the state can step in and arrest you in order to prevent the altercation. It’s nothing less than a “heckler’s veto” loophole grafted onto the right to free speech. The Court hasn’t revisited the case much since, but as far as I know, it’s still good law — and as you can see from Chayes’ piece, there’s plenty of currency for it today as bien-pensants plot to find ways to criminalize criticism of Islam in the name of “security.” If/when blasphemy laws start making a comeback in the United States, it’s the “fighting words” doctrine — or Chayes’ bastardized version of Brandenburg — that’ll carry them. And if you think I’m being alarmist about this, I encourage you to read this post from 2010 about Stephen Breyer sounding surprisingly equivocal about whether the First Amendment protects the right to burn the Koran. Ready to take your chances with another Obama appointee or two if he wins a second term? The sooner the Supreme Court formally repudiates the “fighting words” doctrine, the better.

Exit quotation from Chayes, in deep, deep denial: “The point here is not to excuse the terrible acts perpetrated by committed extremists and others around the world in reaction to the video or to condone physical violence as a response to words — any kind of words.” If you’re giving them precisely what they want because they’re likely to commit “terrible acts,” how are you not excusing their actions?

Blowback

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What is most disturbing is that the First Amendment was designed, intentionally, to protect speech with which we disagree, and with which government has the greatest issue.

For any newspaper to make the case that this “mohammed” video is beyond the pale of free speech shows how far we have descended to the realm of government deciding for us what speech we can accept, make or publish…and that, my friends, is something that should scare the bejezzus out of any rational thinking American.

This is quite possibly the most frustrating thing we’ve encountered politically- with a complicit media, how do we make the uninformed understand what is at stake here? How insane the stakes have become?

I think we need to inform those in government, the ones who swear to uphold the constitution, we will hold them to their sworn duty. We will not have our freedoms limited due to the protestations of a bunch of animals who put bombs on children. If they want religious war, they better check to see who has the best weapons.

A French satirical magazine is set to publish several cartoons of the Prophet Mohammed on Wednesday, a move that is likely to inflame the Islamic faithful and militants who have already rioted in more than 20 countries over a movie mocking the prophet.

I’m almost to the point of supporting any and all proclamations of defamations of any and all things holy to muslims, not because I want to piss off muslims, but because I want to piss off the speech police in this country. Rather than going that route, however, I really think ALL CHRISTIANS in America need to unite under the Apostles Creed for the sole purpose of standing against the rise of Sharia law here in America as exemplified by all those who are calling for de-facto blasphemy laws. The Apostles Creed has been believed and spoken by nearly every single Christian denomination for millennium, and is an easy and all inclusive ecumenical way to unite all believers, Catholic and Protestant. If the Progressives in this country want to use islam as a wedge against Freedom in this country then lets unite as Christians to defeat both.

The LA Slimes is just as bad as the NY Slimes, run by reprobates perverts and Marxists. They wouldn’t know what free speech was if it walked up to them, introduced itself, and then bit their ass right off.

So, if Christians start rioting every time they hear Jesus Christ’s name used in vain, is this Sarah Chayes person going to suggest that should be illegal speech as well? Or are we going to have double standard here (I ask rhetorically)?

Seriously, it is getting to the point that all of us need to rise up, with cameras, and film stupid movies about the Profit Mohammad and post them to YouTube for protest.

the new aesthetic on September 18, 2012 at 7:24 PM

There are no shortage of movies and pictures that insult Mohammed on the Internet. This one just got traction because the Obama Media Complex needed to deflect discussion about his abysmal foreign policy. The movie has been out for months. Nobody in the protests actually watched it.

All of this discussion in the press about “free-speech” is a smokescreen.

Well, if the Piss-Christ “artwork” isn’t within the “fighting words” exception to the First Amendment, then wait to you see the YouTube I’m producing and directing wherein all sorts of people will be filmed pissing on a poster of Mohammed, to Queen’s “We are the Champions”.

If the military doesn’t believe they can protect American soldiers, diplomats and other assets in Islamic countries, that perhaps that should be a big fricken’ clue to us all we should get the hell out of those countries. The mere suggestion that we should abandon our core Western values to avoid offending Muslims is shameful and worrying.

And how many other religions around the world typically riot, kill, destroy and otherwise behave like animals when their religions are “insulted?”

There is something about the pathology of Islam that truly needs to be addressed.

coldwarrior on September 18, 2012 at 7:39 PM

Our mistake is to think that Islam teaches the same things as other religions. It does not.

Islam teaches Muslims that they must kill those that insult Islam. This is literally the word of their god. It’s not some psychological problem that Muslims have. It’s not because they are “poor” or live under dictatorships.It’s not because they feel slighted or downtrodden or helpless. It’s not because they are lashing out with anger. It is simply what they are supposed to do as commanded by their holy texts.

It’s no different than a Catholic going to confession. It’s merely part of their religious duty. Don’t take it personally.

If the choice is between carving off pieces of free speech to sustain an already crumbling mission in Afghanistan and bringing American troops home so that they’re out of harm’s way while keeping free speech intact, I’m all for taking a close look at the latter.

Our guys are supposedly over there to defend all of our rights — including free speech, our form of government, and our way of life. Free speech is fundamental to our way of life and to what America has been about for well over 200 years.

If we have reached the point in Afghanistan that our military leaders think we need to compromise on free speech to “save lives”, that is a clear signal we need to get everyone out of Afghanistan whose lives would be “saved” by stifling free speech. If that is everyone, then so be it.

Well, if the Piss-Christ “artwork” isn’t within the “fighting words” exception to the First Amendment, then wait to you see the YouTube I’m producing and directing wherein all sorts of people will be filmed pissing on a poster of Mohammed, to Queen’s “We are the Champions”.

TXUS on September 18, 2012 at 7:42 PM

You could alter the political balance in the Middle East by that one act alone, TXUS. Any American with a video camera can now influence US foreign policy according to the idiots in the White House.

Well, if the Piss-Christ “artwork” isn’t within the “fighting words” exception to the First Amendment, then wait to you see the YouTube I’m producing and directing wherein all sorts of people will be filmed pissing on a poster of Mohammed, to Queen’s “We are the Champions”.

Well, if the Piss-Christ “artwork” isn’t within the “fighting words” exception to the First Amendment, then wait to you see the YouTube I’m producing and directing wherein all sorts of people will be filmed pissing on a poster of Mohammed, to Queen’s “We are the Champions”.

So, the words of Biden and Obama spiking the ball about killing Bin Laden would then be classified as not being within the bounds of free speech since it will inflame 7′th century savages living in our century?

No. This must stop here and now. If this is to be believed, freedom of speech should be limited when the “objects of ridicule” are violent scum bags, but when they aren’t, well, anything goes? Catholics won’t randomly murder, so crucifixes in beakers of urine are fine. Jews won’t use RPG in Skokie, so the Klan can march and muslim protestors at the UN can hold “death to the juice” signs without fear of prosecution?

This is appalling. So we will toss out the First Amendment and Equal Protection in one fell swoop?

If a Christian or Jew who doesn’t like Bill Maher should kill an atheist–any athiest–and claim they were angry about Religulous, I hope the LA Times would take the same principled stand on Mr. Maher, and his anti-religious “abuse of free speech.

If you’re giving them precisely what they want because they’re likely to commit “terrible acts,” how are you not excusing their actions?

Actually, you’re promoting their actions by giving them positive reinforcement.

When Monty Python made The Life of Brian and The Meaning of Life (with Every Sperm is Sacred) did United States Catholics attack the British embassy and kill the ambassador? No. The problem isn’t the film or the context or the filmmaker. The problem is the intolerance of the Muslim religion as it is practiced today in the Middle East.

Romney is spot on. It is unlikely we will have peace in the Middle East because the Palestinians don’t want it. This movie was just an excuse. The LA Times is advocating a lower standard for Muslims. A standard so low that it cannot be met within the confines of a civilized society. Now a cartoon, a book or movie that insults Mohammed in the opinion of even one Muslim is a justification for murder of a third party, with the blame falling not on the murderer, but on the person who made the comment with no intention of inciting violence. Next will criticism of sharia law or honor killings be justification for murder? After all, criticising those practices is also insulting the Muslim religion. It’s a very slippery slope, with no bottom, because Muslim extremists want world domination and extermination of all infidels.

What is most disturbing is that the First Amendment was designed, intentionally, to protect speech with which we disagree, and with which government has the greatest issue.

For any newspaper to make the case that this “mohammed” video is beyond the pale of free speech shows how far we have descended to the realm of government deciding for us what speech we can accept, make or publish…and that, my friends, is something that should scare the bejezzus out of any rational thinking American.

Let’s face it.
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These embarrassing contortions by administration apparatchiks and the media to ‘blame the movie’ and justify first amendment violation are cynically propelled by the prime directive to protect the prancing prince of hope’n’change from any responsibility or visible association with the ME catastrophe.
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Sacrifices have to be made for the cause of Obamunism.

Our mistake is to think that Islam teaches the same things as other religions. It does not.

Islam teaches Muslims that they must kill those that insult Islam. This is literally the word of their god. It’s not some psychological problem that Muslims have. It’s not because they are “poor” or live under dictatorships.It’s not because they feel slighted or downtrodden or helpless. It’s not because they are lashing out with anger. It is simply what they are supposed to do as commanded by their holy texts.

happytobehere on September 18, 2012 at 7:46 PM

Which raises the question, “Why does the civilized world tolerate and accommodate those who profess that religion to dictate the narrative and even live among us?” Would we tolerate and be accommodating of people from India who were practicing members of the Cult of Kali, the Thuggees? After all, that was a “religion” as well. How intolerant of the Brits to have suppressed it. In a rational world, the islamists would be isolated to the middle eastern countries in which they exist and fenced in to prevent this corrosive ideology from spreading.

Turns out the author, Sarah Chayes, is a former assistant to the chairman of the Joint Chiefs of Staff, which is no surprise.

The building formally known as the Pentagon has become a G-d damned mega mosque whore house of servicing Muslims. The Perfumed Pimps there masquerading as Generals have no regard for America and it’s Constitution or their own troops and they are all out sons-of-bitches, traitors, and chronic dhimmis!

Turns out the author, Sarah Chayes, is a former assistant to the chairman of the Joint Chiefs of Staff, which is no surprise.

The building formally known as the Pentagon has become a G-d damned mega mosque whore house of servicing Muslims. The Perfumed Pimps there masquerading as Generals have no regard for America and it’s Constitution or their own troops and they are all out sons of #itches, traitors, and chronic dhimmis!

In Brandenburg, the Court held that the government cannot punish inflammatory speech unless that speech is directed to inciting, AND is likely to incite, imminent lawless action. The youtube video has been on the internet since July. Your argument doesn’t pass the Brandenburg test. Three elements must be satisfied:

1. MENS REA REQUIREMENT. The prosecution must prove that the filmmaker intended for the film to cause violence, not just offence. Causing the religious to be offended is protected speech. See Serrano, Mapplethorpe, etc.

2. LIKELY TO INCITE. I’ll grant you this one since you believe we should censor our speech so as to coddle the nutters, who belong to a misogynistic, homophobic, child-abusing, maniacal, homicidal, suicidal, totalitarian, 7th century death cult. Of course, you will need to begin wearing a hijab and confining yourself to “your room” or change your name. Might I suggest “Ms Purina Fancy Feast”? See the comments made by the Grand Mufti of Australia, Sheikh Taj Din al-Hilali, 26 October 2006.

3. IMMINENT LAWLESS ACTION. Imminent is not weeks or months and most courts don’t even consider it days. Generally, incitement of imminent lawless action would be found in a case such where a gang leader riled up other members and said something to the effect, “Go out and kill the motherfvckers!” and the members actually go murder the “motherfvckers.”

Brandenburg’s “likelihood to incite imminent lawless action” was further clarified in Hess v. Indiana, 414 U.S. 105 (1973) and held that the defendant’s statements “amounted to nothing more than advocacy of illegal action at some indefinite future time.” So, if advocacy of illegal action is legal because it is not specific as to time, how can a film that was posted two months ago without incident be considered to be unprotected speech since it was “intended to likely incite imminent lawless action,” as you allege?

Indeed, Justice Holmes’ original example, shouting “fire” in a theater, is not a call to arms.

FALSELY shouting fire, Ms Chayes, FALSELY.

This “fire in a crowded theatre” argument is a very dangerous and slippery slope in the context of Islam. In some countries in Europe, it is now a crime to yell “fire in a crowded theatre” a/k/a “radical Islam is mutilating the genitals of females, beating and calling for the executing of homosexuals, demanding the exclusion of Jewish children from public schools, etc.” In other words, YELLING “FIRE IN A CROWDED THEATRE” THAT IS ACTUALLY ON FIRE (a/k/a telling the truth about FGM, for example) IS NOW A CRIMINAL OFFENCE BECAUSE IT “OFFENDS” THE SENSIBILITIES OF SOME MUSLIMS.

Further, as the Heritage Foundation recently noted, “As recently as December 19, 2011, the U.S. voted for and was instrumental in passing ‘U.N. Resolution 16/18’ against ‘religious intolerance,’ ‘condemning the stereotyping, negative profiling and stigmatization of people based on their religion.’ While this may sound innocuous, it was the latest incarnation of a highly controversial ‘anti-blasphemy’ resolution that has been pushed by the Organization of Islamic Cooperation (OIC) at the United Nations since 1999. This concept of global “blasphemy laws,” to which the Obama Administration is very obviously not hostile, is a long-cherished goal of Islamic supremacists. It is also Constitutional sacrilege.”

Robert Spencer: “Finally: NATO scales back joint operations with Afghan forces. How many had to be murdered by their “trainees” and “partners” before this happened? General Allen and the rest of the high command should be put on trial for the deaths of every one of those troops. What war strategy? There is no plan for victory, no definition of victory, no clear goal, no clear means to get to any goal — nothing. Just more and more of our troops killed for a Sharia government that its people hates, battling Sharia forces that enjoy broad support.”